IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE FOURTH COURT OF APPEALS
KERR COUNTY
DISSENTING OPINION
I dissent for two reasons. First, I disagree with the majority deciding this issue based on the parents' intent to deprive the rapist of his used condom. I do not feel that a theft was committed when the victim's mother went to her parents house, opened her brother's truck using a spare key, and took the used condom her daughter told her was behind the seat on the floor of the truck. Although the victim's mother entered her brother's truck without his knowledge, she did not do so with intent to deprive him of property. Similar to other used hygiene items such as a used bandage or used tissue, the used condom had no value. Therefore, appellant had no property right to the item taken from his truck. (1) If appellant had a property right to the condom containing his DNA, then wouldn't the victim also have an equal property right to that condom since it also contained her DNA? Because of the specific circumstances of this case, I do not think that a law was broken to obtain this evidence, and I do not think Article 38.23 applies. Thus, the condom should be admissible.
Second, I disagree that there is a general exception to Article 38.23(a) when the intent is to turn the evidence over to the police. The majority holds that, "when a person who is not an officer takes property that is evidence of crime, without the effective consent of the owner and with the intent to turn over the property to an officer, the conduct may be non-criminal even though the person has intent to deprive the owner."
In Garcia v. State, 829 S.W.2d 796, 799 (Tex. Crim. App. 1992), we concluded that Article 38.23 contained no exceptions other than the "good faith" exception that is specifically stated in subsection (b). We declined to create an "inevitable discovery" exception and specifically stated that until the Legislature amends the statute, "we must enforce [it] as written, excluding all illegally obtained evidence, with the single exception as set out in the statute." Id. at 800. We have also stated that "the attenuation doctrine is not an exception to Article 38.23, but rather is a method of determining whether evidence was 'obtained' in violation of the law, with 'obtained' being included in the plain language of the statute." State v. Johnson, 871 S.W.2d 744, 751 (Tex. Crim. App. 1994).
The majority now chooses to create an "intent to turn evidence over to the police" exception although we have never found an exception to Article 38.23 in a situation in which the law has been broken. In the cases relied upon, Cobb v. State, 85 S.W.3d 258 (Tex. Crim. App. 2002) and Stone v. State, 574 S.W.2d 85 (Tex. Crim. App. 1979), we held that there was no law broken because there was no intent to deprive, so Article 38.23 did not require exclusion of the evidence. The majority now says that, in those cases, there was clearly intent to deprive, but sometimes that is acceptable, as long as there is also intent to turn evidence over to the police within a certain amount of time. Because I feel that this broad exception will encourage victims to break the law to obtain evidence to turn over to the police, I oppose this holding.
I believe that the trial court correctly denied appellant's motion to suppress the evidence and agree with the Court of Appeals that there was no intent to deprive appellant of his property. Therefore, I respectfully dissent.
Meyers, J.
Filed: October 20, 2004
Publish
1. Many cases have stated that there is no expectation of privacy in trash and have allowed even
police officers to conduct warrantless searches of trash even when it is on the defendant's property.